Saunders v. McDonough

Decision Date18 October 2021
Docket NumberCivil Action 21-10106-MBB
PartiesDIANA C. SAUNDERS, Plaintiff, v. DENIS R. MCDONOUGH, Defendant.
CourtU.S. District Court — District of Massachusetts


Civil Action No. 21-10106-MBB

United States District Court, D. Massachusetts

October 18, 2021


MARIANNE B. BOWLER United States Magistrate Judge

Pending before this court are two motions: 1) a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”) and Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), filed by defendant Denis R. McDonough, the Secretary of the Department of Veterans Affairs (the “Secretary”) (Docket Entry # 18); and 2) a motion for leave to file an amended complaint filed by pro se plaintiff Diana C. Saunders (“plaintiff”) (Docket Entry # 28). This court took the motion to dismiss under advisement after conducting a hearing on August 2, 2021. (Docket Entry # 30). Plaintiff has not filed an opposition. Defendant opposes plaintiff's motion for leave to file an amended complaint. (Docket Entry # 31). This memorandum and order addresses both


pending motions.


Plaintiff filed pro se a complaint for employment discrimination on January 20, 2021 (the “initial complaint”), asserting federal question jurisdiction and naming three individuals as defendants. (Docket Entry # 1). The initial complaint consisted of a standard form designed for pro se plaintiffs in civil actions, to which plaintiff attached a timeline of facts that she prepared (the “timeline”) and an 82-page exhibit of various records (e.g., copies of emails and letters). (Docket Entry ## 1, 1-2, 1-3). Plaintiff did not plead or otherwise indicate that she had filed a charge with, or received a right-to-sue letter from, the Equal Employment Opportunity Commission (“EEOC”) or an Equal Employment Opportunity (“EEO”) counselor regarding the alleged discriminatory conduct. See generally (Docket Entry # 1). The exhibit contains documents that refer to a EEO complaint and EEO “activity”[1] but does not include a copy of a charge filed with, or a right-to-sue-letter issued by, the EEOC or an EEO counselor. See (Docket Entry # 1-3).

On April 15, 2021, plaintiff filed a motion to amend the initial complaint to substitute the Secretary in place of the


three previously named individuals.[2] (Docket Entry # 11). She did not attach a proposed amended complaint. See generally (Docket Entry # 11). On May 6, 2021, with no opposition from defendant, this court granted plaintiff's motion to amend. (Docket Entry # 12).

On June 21, 2021, plaintiff filed a second motion to amend that included an amended complaint as an attachment (the “amended complaint”) (Docket Entry # 17). The amended complaint was on a standard form designed for pro se plaintiffs in employment discrimination actions. See (Docket Entry # 17). A typed one-page document included at the end, which does not appear to be part of the standard form but prepared by plaintiff herself, provides a brief summary of the “[f]acts in [her] case” and refers to an “EEO case.” (Docket Entry # 17, p. 8). Like the initial complaint, the amended complaint did not include a copy of any charge with, or a right-to-sue letter issued by, the EEOC or an EEO counselor.[3] See generally (Docket Entry # 17).


In the amended complaint, plaintiff indicated (by checking two boxes) that the basis for jurisdiction was Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the “ADEA”). (Docket Entry # 17, p. 4). She left blank the “Exhaustion of Federal Administrative Remedies” section of the form complaint, which asks plaintiffs to indicate whether: 1) they have filed a charge with the EEOC or an EEO counselor regarding the alleged discriminatory conduct; 2) the EEOC has issued a notice of right to sue; and 3) for age discrimination claims, 60 days or more have elapsed since filing the charge of age discrimination with the EEOC. (Docket Entry # 17, p. 5). In the “Statement of Claim” section, she indicated (again via checked boxes) that the alleged discriminatory conduct occurred on January 8, 2014 and involved termination of her employment, failure to promote her, and retaliation against her. (Docket Entry # 17, p. 5). She also indicated that defendant discriminated against her on the basis of her “gender/sex” and “age.” (Docket Entry # 17, p. 5). She did not re-attach the 82-page exhibit from the prior complaint. See generally (Docket Entry # 17).


This court granted plaintiff's second motion to amend on June 26, 2021 (Docket Entry # 20), a day after defendant filed its motion to dismiss (Docket Entry # 18). The Secretary alleges three reasons for dismissal: 1) with respect to the ADEA and Title VII discrimination claims, plaintiff never exhausted (or attempted to exhaust) her administrative remedies; 2) the alleged retaliatory conduct “cannot be retaliatory as a matter of law because it occurred before [her] earliest protected activity”[4]; and 3) the complaint lacks “a plausible inference of wrongdoing”[5] (Docket Entry # 18). As noted above, plaintiff has not filed an opposition to the motion to dismiss.

On July 23, 2021, plaintiff filed a third motion to amend and attached an amended complaint (the “proposed amended complaint”). (Docket Entry ## 28, 28-1). The proposed amended complaint is in paragraph format rather than on the standard form of the prior two complaints. (Docket Entry # 28-1). Plaintiff also attached a 33-page exhibit. (Docket Entry # 28-3). In addition to the claims in the amended complaint (i.e., retaliation and discrimination on the basis of sex and age), the proposed amended complaint alleges the creation of a hostile work environment based on filing a charge of discrimination in


violation of Title VII and the ADEA (Count IV). (Docket Entry # 28-1). The proposed amended complaint also alleges that plaintiff filed a complaint with an EEO counselor on January 28, 2014, and received a right-to-sue letter from the EEOC on November 20, 2020. (Docket Entry # 28, p. 2). On August 31, 2021, defendant filed an opposition to plaintiff's third motion to amend the complaint. (Docket Entry # 31).

I. Defendant's Motion to Dismiss (Docket Entry # 18)

The Secretary's first argument in support of dismissal is that “[t]his court lacks jurisdiction over [p]laintiff's discrimination claims because [p]laintiff never exhausted, or attempted to exhaust, those claims.” (Docket Entry # 19, p. 2).

The Secretary's second argument is that the retaliatory conduct alleged in the amended complaint “cannot be retaliatory as a matter of law because it occurred before [p]laintiff's earliest protected activity.” (Docket Entry # 19, p. 2). Lastly, the Secretary maintains that “all of [p]laintiff's discrimination and retaliation claims fail because the amended complaint does not sow a plausible inference of wrongdoing.” (Docket Entry # 19, p. 2).

A. Failure to Exhaust Administrative Remedies for Discrimination Claims

This court begins its evaluation of the Secretary's motion to dismiss (Docket Entry # 18) based on the argument that


plaintiff failed to exhaust administrative remedies for her discrimination claims prior to initiating this action.


Under Rule 12(b)(1), a court “must ‘credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.'” Sanchez ex rel. D.R.-S v. United States, 671 F.3d 86, 92 (1st Cir. 2012) (citation omitted). When a defendant challenges subject matter jurisdiction, the plaintiff bears the burden of proving its existence. Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st Cir. 2008). In addition to the well pleaded facts in the complaint, a “district court may also ‘consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'” Merlonghi v. U.S., 620 F.3d 50, 54 (1st Cir. 2010) (citation omitted).

To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007); see Miller v. Town of Wenham Massachusetts, 833 F.3d 46, 51 (1st Cir. 2016). As with a Rule 12(b)(1) analysis, a court must “‘accept as true all well pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiffs.'” Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (citation omitted). Courts must assume that only “well-pleaded


factual allegations” are accurate, not “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . .” Iqbal, 556 U.S. at 678-79; Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). Assuming only the “well-pleaded factual allegations” as accurate, the “claim” must have “facial plausibility” which is “not akin to a ‘probability requirement,' but [] asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678-79. If the facts in the complaint “are ‘too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, '” dismissal is appropriate. In re Montreal, Maine & Atl. Ry., Ltd., 888 F.3d 1, 6 (1st Cir. 2018).

When evaluating a motion to dismiss, a court may consider, inter alia, “‘documents central to the plaintiffs' claim, '” “‘documents sufficiently referred to in the complaint, '” and “‘documents the authenticity of which are not disputed by the parties.'” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (citation omitted); see also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).

The preliminary issue before this court is whether plaintiff's proposed amended complaint should be read in tandem with the initial complaint (which...

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